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Utah will ask Supreme Court to stop gay marriage during appeal

"The Attorney General's Office is preparing an application to the United States Supreme Court requesting a stay of the district court's order. Due to the necessity of coordination with outside counsel the

Utah will ask Supreme Court to stop gay marriage during appeal

Chris Serrano, left, and Clifton Webb kiss after being married, as people wait in line to get licenses outside of the marriage division of the Salt Lake County Clerk's Office in Salt Lake City on Dec. 20, 2013.(Photo: Kim Raff, AP)

Story Highlights

Hundreds of same-sex couples have married in Utah in the week since the district court ruling.

The state says it has the right to define marriage and has legislated against same-sex marriage three times

The Supreme Court addressed the issue of same-sex marriage in two cases in June.

Same-sex marriage, twice on the Supreme Court's agenda this year, will get another federal look as Utah asks the justices to halt gay marriages in the state until it can exhaust its legal appeals.

Utah's Attorney General said it would ask the U.S. Supreme Court to block a Dec. 20 ruling from a district court in Utah that found Utah's ban on same-sex marriage conflicts with the Constitution's guarantee of equal protection and due process under the 14th Amendment.

"It is the intent of the Attorney General's Office to file with the Supreme Court as soon as possible,"said a statement from the officeThursday.

Judges in previous same-sex marriage cases have put their decisions on hold until the losing party could appeal, says law professor Steve Sanders of Indiana University's Maurer School of Law.

"It preserves a little bit of respect for the state's interest," says Sanders, who thinks it more likely that the Supreme Court will grant the stay without revealing its thinking on the merits of the case.

In the week since the district court ruling, hundreds of gay and lesbian couples have married in the state. A stay from the Supreme Court would halt future marriages, but would not make the same-sex marriages performed this week invalid, Sanders said.

"Those marriages were done in good faith during the time when it was legal. I think you have to say those marriages are valid," Sanders says.

The Supreme Court addressed same-sex marriage with two decisions in June. One 5-4 ruling, written by Justice Anthony Kennedy, struck down a clause in the Defense of Marriage Act that denied federal benefits to same-sex spouses in states that allow same-sex marriages. In the second decision, the court did not say whether states must allow same-sex marriage.

In this case, Utah would ask the Supreme Court to block the district court ruling while the appeals proceed, halting same-sex marriages in the state until the legal questions are settled.

The ruling stems from a lawsuit filed by three gay and lesbian couples who wish to marry but are barred from doing so in Utah. Utah's constitution prohibits same-sex marriage. Utah says it has the right to define marriage.

Utah has legislated against same-sex marriage three times. The state first banned same-sex marriage in 1977. In 2004, the state legislature passed another law defining legal marriage as a union between a man and a woman. Two-thirds of Utah voters supported the law in a Nov. 2, 2004 referendum, which took effect as Amendment 3 on Jan. 1, 2005.

U.S. District Judge Robert Shelby agreed in his ruling that the state has the right to define marriage but questioned whether Utah's definition violated the couples' constitutional rights..

"The State's current laws deny its gay and lesbian citizens their fundamental right to marry and, in so doing, demean the dignity of these same-sex couples for no rational reason," Shelby wrote. "Accordingly, the court finds that these laws are unconstitutional."

With this ruling, Utah and 17 other states now permit same-sex marriage.

The state can appeal the district court's decision to the 10th Circuit court of appeals, which has indicated it would hear the case quickly. That decision could then be appealed to the Supreme Court.

"That's when the Supreme Court will be faced with a real dilemma," Sanders says.

In the June cases, the Supreme Court addressed a federal law that imposed on states that allowed gay marriage. In the Utah case, the Supreme Court would address a state's power to legislate.

"The thing that connects them is the very broad sympathetic language by Justice Kennedy," Sanders said. "The plaintiff's are betting that Justice Kennedy will bend and join the more progressive justices,"